June 18, 2012

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The Supreme Court’s highly anticipated ruling on Obama’s healthcare reforms could come any day now. Whatever the verdict, expect much ado about the hotly debated role of broccoli in healthcare and arcane explanations of the Commerce Clause that is at the center of the legal case against the individual mandate. But buried deep in hearings filled with legalese and judicial sparring was a short exchange that illuminates an American ideal that truly hangs in the balance with this decision—the idea that in a civilized society, we do not sit idly by and watch our neighbors die.

The specific back-and-forth in question occurred on the third day of the hearings between Justice Antonin Scalia and Solicitor General Donald Verilli, the administration official charged with defending the law in court. It went like this:

GENERAL VERRILLI: No. It’s because you’re going—in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow—that—to which we’ve obligated ourselves so that people get health care.

JUSTICE SCALIA: Well, don’t obligate yourself to that. Why—you know?

GENERAL VERRILLI: Well, I can’t imagine that that—that the Commerce Clause would —would forbid Congress from taking into account this deeply embedded social norm.

JUSTICE SCALIA: You—you could do it.

If you are not a frequent watcher of the Court and therefore not fluent in the cadences of judicial banter, this short, seemingly banal interchange in an exhaustive debate may not have even registered. The “deeply embedded social norm” that Verilli refers to—in fact seems confused that he has to explain to Justice Scalia—is the norm that dictates that people will step in to aid others who are ailing or in danger of death.

Scalia’s statement that “you could do it [defy these norms]” eerily evoked the appalling moment at the September 2011 Republican presidential debate when the audience wildly applauded Wolf Blitzer’s stunned probing of whether candidate Ron Paul would allow a 30-year-old uninsured man in a healthcare emergency to die. “Yes!” shouted unashamed audience members, turning a presidential debate into something reminiscent of the Roman Colosseum. When Justice Scalia argued against the social norms that Verilli was presuming sacrosanct, he was essentially saying, “Let him die!”

While we’ve grown to expect this kind of mob mentality from a radical right wing whipped up in a Tea Party frenzy, this bizarre display of indifference from a Supreme Court Justice breaks new ground in an evolving culture that seems to prize resistance to any and all government over the compassion that is the essence of civilized society. The right screams often and loudly that President Obama has declared war on the Judeo-Christian underpinnings they hold as American as apple pie. But in fact, it is Justice Scalia, from his exalted perch, who appears intent on vacating the Golden Rule and undermining the parable of the Good Samaritan, both core to Christian theology.

Scalia doesn’t come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement.

Scalia, ever the showman, joked during the March hearings that having to read the entire healthcare law in order to rule on it would amount to cruel and unusual punishment, prohibited by the Constitution. At the same time, he displayed an egregious ignorance regarding which provisions in the bill actually passed. And on the final morning of arguments, Scalia laid his cards on the table when he argued that stripping out the individual mandate would cause the whole law to topple.

The mandate, more descriptively titled the “free-rider clause,” fines uninsured individuals who expect taxpayer-supported emergency services to cover calamities that befall them. It is also the component of the reform that allows insurance companies to affordably cover those with pre-existing conditions. Cutting the mandate, Scalia mused, cuts the heart out of the entire reform and would almost certainly kick the whole matter back to a gridlocked Congress, while millions of lives hang in the balance.

A recent Pew poll shows that approximately 83 percent of Americans are affiliated with an organized faith, be it a form of Christianity, Judaism, Muslim, Hinduism or Buddhism. A whopping 78.4 percent of us fall somewhere in the Christian camp. Yet, it is core Christian values that are currently on trial at the Supreme Court.

Perhaps this emotional dissonance is what drives a new poll from the New York Times that shows that only 44 percent of Americans approve of the job the Supreme Court is doing. Once a venerated institution that seemed immune to the partisan squabbles of the other branches of government, the Court has consistently displayed its corporate and right-wing allegiances in decisions that span from 2000’s Bush v Gore when it picked our president and irrevocably altered the course of history (Scalia later told Americans to “get over it!” when asked about the decision) to the 2009 Citizens United decision, the impact of which is being felt acutely this election season. Now, 75 percent of Americans say that the Justices’ political preferences motivate their decision making on the bench.

When healthcare reform passed in 2010, the United States ranked dead last among similar countries in a study comparing cost and quality of healthcare. America consistently spends twice as much for lesser care than its industrialized allies. While the Affordable Care Act left some of the best solutions on the table, it offers real hope to the one in four American adults that go without healthcare each year due to job transitions or other circumstances. So many of our neighbors live in terror that a single unexpected calamity will drive their family into bankruptcy spurred by emergency medical bills. Now, when the verdict comes in, those fellow Americans can add a new fear to their list: that a Conservative Catholic Supreme Court Justice will lead the charge to let them die.

Ilyse HogueTwitterIlyse Hogue, a social change practitioner, media consumer and analyst, and online engagement expert, is the president of NARAL Pro-Choice America. Previously, she served as Co-Director of Friends of Democracy, a 2012 initiative to build political power around the issue of money in politics and as Senior Adviser to Media Matters for America where she focused on advocacy programs to undercut the power of right-wing media. From 2006- 2011, Ilyse was Director of Political Advocacy and Communications for MoveOn.org. In her over five years at MoveOn, she was responsible for shaping political strategy and developing communications initiatives to give MoveOn's five million members a voice in Washington. An expert in both electoral and advocacy campaigns, she has mobilized MoveOn members and worked closely with leaders in Congress and the White House to advocate for progressive legislation on financial regulatory reform and health care. In these capacities, she has served as a spokesperson to the media, frequently analyzing breaking news on both televisions and in print.
Prior to joining MoveOn, Ilyse was Program Director at the Rainforest Action Network, where she spent six years pioneering and implementing corporate advocacy campaigns in the banking, forest, and other sectors. She was the recipient of the Business Ethics Network award in 2005 for her work in the financial sector, a campaign that was ultimately instrumental in moving over 60 multinational banks to adopt a groundbreaking framework of environmental standards for private investment known as the Equator Principles. These principles led to a host of voluntary initiatives in the US banking sector, including from Goldman Sachs, Citigroup, JP Morgan Chase and Bank of America. Ilyse was the chief negotiator in each of those agreements and worked to market them to a spectrum of constituencies, from institutional investors to environmental NGOs. A Harvard Business School case study was written in 2005 about this work, and she has lectured on it at Yale and Columbia. She has been a frequent speaker and writer about corporate power, corporate accountability and multi-national institutions that govern financial and corporate behavior. Ilyse was very involved in the global justice movement, traveling from Seattle to South Africa and many places in between working with international allies on corporate power.
She is the co-founder of smartMeme Strategy and Training project which works to amplify the impact of grassroots organizing with new strategy and training resources, values based communications, collaborations, and meme campaigning. Ilyse serves on the board of Rebuild the Dream, Oil Change International, Story of Stuff, and National Domestic Worker's Alliance. Ilyse holds an M.S. in Resource Ecology Management from the University of Michigan where she studied the impact of resource constraints in politics and culture. Her BA is from Vassar College.